Orissa High Court
Rama Jena And Others vs Kela Jena And Others on 8 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 239 of 2014
Rama Jena and others .... Petitioners
Miss Prajna Sarita Mohanty, Advocate
on behalf of Mr. Samir Kumar Mishra,
Advocate
-versus-
Kela Jena and others .... Opp. Parties
Mr. Dwarika Prasad Mohanty, Advocate
(Opposite Party Nos.1 to 4)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 08.12.2022
20. 1. This matter is taken up through Hybrid mode.
2. Petitioners in this CMP seek to assail the order dated
15th January, 2014 (Annexure-3) passed by learned District
Judge, Puri in FAO No.93 of 2013, whereby dismissing the
appeal learned appellate Court confirmed the order dated 28th
September, 2013 (Annexure-2) passed by Additional Civil
Judge (Senior Division), Puri in CMA No.111 of 2010 (arising
out of CS No.13/37 of 2007-2003) dismissing an application
filed under Order IX Rule 13 CPC.
3. Miss Mohanty, learned counsel appearing on behalf of
Mr. Mishra, learned counsel for the Petitioners submits that CS
No.13/37 of 2007-2003 was filed for partition of two plots, i.e.,
Plot No.773 and 774. Petitioner Nos.1 (A) to 1(E) are
descendants of Rama Jena, who along with Raghu Jena and
Jatadhari Jena were impleaded as Defendants in the suit. Said
Jatadhari Jena was looking after the suit on behalf of the
Defendants. As the Advocate engaged by them did not inform
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said Jatadhari Jena about the proceedings of the suit they could
not participate in the hearing and were set ex-parte.
Subsequently, preliminary decree for partition was passed ex-
parte allotting 50% share of the suit property in favour of the
Defendants. They could not also participate in the final decree
proceeding. However, receiving notice in Execution Case No.1
of 2010, the Defendants came to know about the ex-parte decree
passed in the suit. Hence, they filed a petition under Order IX
Rule 13 CPC in CMA No.111 of 2010 before learned
Additional Civil Judge (Senior Division), Puri. The said CMA
was dismissed vide order dated 28th September, 2013
(Annexure-2). Assailing the same, the Defendants preferred
FAO No.93 of 2013 before learned District Judge, Puri, which
was also dismissed by judgment and order dated 15th January,
2014. Hence, this CMP has been filed for the aforesaid relief.
3.1 Miss Mohanty, learned counsel for the Petitioners
submits that Defendants had engaged one Sri P.C. Mohapatra,
learned counsel to conduct the suit on their behalf. But he did
not inform the Defendants more particularly Jatadhari Jena, who
was looking after the case about the proceedings of the suit.
Thus, the Defendants could not know about the development in
the suit. As a result, preliminary decree was passed ex-parte
allotting 50% to the Defendants. Likewise the final decree
proceeding went undefended. Petitioners, however, are
aggrieved by the allotment of share which includes a residential
house of the Defendants. Unless the final decree allotting the
homestead property in favour of the Plaintiffs is set aside,
Petitioners will be highly prejudiced. It is his submission that
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the Defendants have explained the delay in filing the petition
under Order IX Rule 13 CPC properly, but neither the learned
trial Court nor the appellate Court could appreciate the same and
passed the impugned orders under Annexures-2 and 3. Hence,
she prays for setting aside the impugned orders under
Annexures-2 and 3 and to restore the final decree to file so that
the Petitioners can contest the allotment of share of the suit
property.
4. Mr. Mohanty, learned counsel for contesting Opposite
Parties vehemently objects to the same and contends that the
discussions made in the impugned orders clearly disclose that
the Defendants had knowledge about the preliminary decree
when the Amin went to the village for measurement of the land
for allotment of share. It is his submission that the Amin
measured the land on 10th /11th November, 2008 for allotment of
share in the village and one of the Defendants was signatory to
the measurement sheet. Thus, the Defendants had knowledge
about the preliminary decree since 2008. But no explanation has
been offered by the Defendants as to why they waited till receipt
of notice in the execution case to file a petition under Order IX
Rule 13 CPC.
4.1 Further, the allegation that the Defendants had engaged
learned counsel, namely, Sri P.C. Mohapatra is not correct.
They had, in fact, engaged Mr. P.C. Nanda, as their counsel to
defend the suit, which is apparent from the certified copy of
Ext.'A' (Vakalatnama). Thus, the allegation that Sri. P.C.
Mohapatra did not inform the Defendants about the
development of the suit, is not correct. Discussing the materials
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on record learned trial Court as well as learned appellate Court
has categorically held that Petitioners had not explained the
sufficient cause for non-appearance on the date of hearing of the
suit. They have also not explained the delay in filing the petition
under Order IX Rule 13 CPC properly. Thus, this Court in
exercising power under Article 227 of the Constitution should
not interfere in the impugned orders, which are based on
findings of fact.
5. Taking into consideration the rival contentions of the
parties, this Court scrutinized the record, more particularly the
impugned orders passed under Annexures-2 and 3. On perusal
of record, it appears that the allegation of Defendants was that
after entering appearance in the suit their Advocate, Sri P.C.
Mohapatra did not inform them about the developments of the
suit. Jatadhari Jena (Defendant-Petitioner No.3), who was
examined as PW-1 deposed that he was looking after the suit on
behalf of the Defendants and had visited the Court about 20-25
times for taking steps in the matter and paid fees to the counsel
engaged by them. However, Ext. 'A', i.e., certified copy of the
Vakalatnama executed by the Defendants, reveals that the same
was executed in favour of one Sri P. C. Nanda, Advocate
instead of Sri P. C. Mohapatra, as alleged. It further appears that
PW-1 in his evidence has categorically deposed that the ex-
parte decree came to his knowledge, when the Amin visited the
village for measurement of the land. OPW-1 has categorically
stated that the Amin visited on 10th /11 November, 2008 and
submitted his report in February, 2009. It further appears that
one Raghu Jena/Defendant No.2 was a signatory to such
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measurement made by the Amin. Thus, it is apparent that the
Defendants had knowledge of the ex-parte decree since 10th
/11th November, 2008. No explanation has been offered by the
Defendants as to why they waited till receipt of notice in
Execution Case No.1 of 2010 to file the petition under Order IX
Rule 13 CPC. From the submission made by Mr. Mohanty,
learned counsel for contesting Opposite Parties, it appears that
the Petitioners have no objection to the preliminary decree.
They only object the allotment of share of homestead property
in possession of the Petitioners to the Plaintiffs. Thus, after
being aware of the final decree they could have preferred an
appeal against the final decree assailing the allotment of share.
6. It further appears that learned trial Court as well as the
appellate Court has discussed the materials on record in detail
and came to the conclusion that Defendants have neither shown
sufficient cause for their non-appearance on the date of hearing
nor they have explained the delay in the petition filed under
Order IX Rule 13 CPC properly.
7. In view of the discussions made above, this Court is
satisfied that the Petitioner have not made out any case for
interference with the impugned orders under Annexures-2 and
3. Thus, the CMP fails being devoid of any merit and the same
stands dismissed as such.
8. Interim order dated 20th March, 2014 passed in Misc.
Case No.209 of 2014 stands vacated.
s.s.satapathy Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
